Singapore Court Rules That Online DVR Is Infringing... While Noting How Copyright Law Isn't Really Set Up For This

from the it-sure-is-confusing dept

As copyright-watchers are well aware, recently there was an important case that went through the US court system over whether or not cable company Cablevision could provide a remote DVR service. Effectively, Cablevision was setting up a bank of TiVo-like devices at its own datacenter, and allowing users to record and playback shows as if they were recording them on a DVR settop box sitting under their television. The only real difference is where the box is (or, you might say, how long the wire is between the TV and the DVR). Since it's already well established that time-shifting is perfectly legal it was difficult to see how anyone could make the argument that Cablevision's setup was infringing. The only difference was the length of the wire. But, of course, the TV guys objected strenuously with bizarre analogies that didn't make much sense.

The appeals court sided with Cablevision, saying that such a service doesn't infringe, and the Supreme Court chose not to hear the appeal, so this ruling stands, at least in the Second Circuit, for the time being. But what was most telling about the actual appeals court ruling was how the judges had to contort themselves into all sorts of odd ways to make such a ruling make sense under the law. The conclusion clearly made sense. Copyright law wouldn't make any sense at all if the length of a wire could change something from infringing to non-infringing. And yet, there were ways to read copyright law that would have found in favor of the networks. The issue is really twofold. First, technology advances faster than copyright law, and the conditions that were in place when the law was written aren't the same as what happens later. Second, to deal with this our esteemed elected officials simply apply duct tape-like patches to copyright law, adding new definitions and categories, that didn't exist before. But, then when new technologies come along, the question is what categories do the resulting outputs fall into, and the arguments are often about who gets to categorize the output to their benefit.

It appears that the US is not the only country going through this sort of debate. I've been alerted to a recent ruling in Singapore that actually comes to a different conclusion and finds infringing behavior on the part of the service provider. The story here is slightly different. In this case, the company is RecordTV -- a separate service, rather than provided by the cable company itself. Also, it's a web-based service, rather than a TV-based one. Users log in and can designate which shows (only from Singaporean channels that broadcast over-the-air) they want to record, and the service will record those shows and make them accessible to that user only for a limited amount of time. There is one
other complicating factor, in that the way RecordTV works has shifted over time. Initially it would record a show once and allow anyone who requested that recording to access the single file. But later it switched to keeping a separate recording of each show that someone requested, which seems massively inefficient in terms of storage.

What's stunning again, however, as you read through the ruling is how conflicted the judge appears to be. There's a ridiculous amount of "on the one hand, on the other hand, but on the other other hand"-type reasoning found throughout the ruling, which you can see below:

It's also interesting to see that, despite this ruling being in Singapore, under Singaporean rule, the discussion spends a lot of time looking at the Cablevision case in the US (and some other US and UK cases as well).

So, why does the judge come to a different conclusion? Well, it almost feels like it depended on which eventual flip of the coin came up which way. The judge agrees with the basic ruling in Cablevision that it is not the service provider who is liable for direct infringement. As in the Cablevision case, it's the end users who "pushes the button" and thus is actually responsible for the action. All good. But, the lawsuit also focused on a secondary level of infringement, and here the court found that RecordTV, while not liable for the actual recording, could be found liable of secondary infringement in the later transmission of the content.

This seems like a total headscratcher. So a user is responsible for recording the file, but not responsible for then accessing it (recognize that the user accessing the file is the same as the service provider transmitting it)? How does that make sense?

There is a second issue also, which is that the court had trouble with the fact that RecordTV meant to be a commercial enterprise in which it would make money by having ads. It used this issue as one of a few factors that removed a "fair dealing/fair use" defense by the company. Again, though, there's a lot of "on the one hand, on the other hand" type debates in the ruling until the judge basically says that under the law, as it stands, the site is guilty of infringement. But even it seems really troubled by what this means from a practical perspective:

I leave open the possibility that such a DVR or VCR product or service, operating remotely or locally, digitally or via analog means, could amount to fair dealing under our Copyright Act only for the non-commercial facilitation of end-users' time shifting. As we have seen earlier... it is inconsistent that the VCR is permitted to be sold at a price (in stores) but the [remote] DVR (through advertising revenue) is not, but until the occasion requires, I shall not make any pronouncements on this anomaly.

And there you are. Even the judge seems to recognize that it's silly to find one service infringing and the other not, but basically says that with the way copyright law is set up, that's the ruling that makes sense.

Finally, this should be worrisome on all sorts of levels for a variety of online services that seek to replicate perfectly legal analog equivalents. The fact that where a storage device is stored or how long a wire is could totally change the legality of a product should suggest that something is seriously wrong with copyright law.

Should it be a surprise?

Given how the US has pressured countries around the world to bend to their idiotic notions of "protection", it doesn't surprise me to see Singapore (et al) find themselves in these situations.

Imagine, just for a second, had RecordTV "won" its case. If people wanted to start "recording" shows not televised in Singapore alone, it wouldn't take long before the lawsuits began to pile up.

Someone once asked a question why it's wrong to take a show from Hulu and deliver it somewhere else. There's no proper answer to this question and countries around the world are finding out just how difficult it is to answer.

The "length of cable" argument should have never been brought up at all, but yet any straw the "industry" can grab at will be yanked until it's pulled completely.

The most ironic element of all these types of cases is that the industry is rushing to protect its models using technology it never contributed a single penny to.

The VCR, DVR, MP3, CD, etc. were all developed outside the entertainment industry and now each is being attacked at one form or another for its very reasoning to exist in the first place.

The web page is just another one of the line in technology, yet here we all go again. Despite my attempts at telling people to quit buying this crap, as long as the pennies roll in, so too shall the copyright wars.

Next up on Techdirt: why distributors are forcing cable companies to extort billions from subscribers to pay for the "increased costs" of ad-saturated content, er, content-saturated ads.

Re: Should it be a surprise?

"Someone once asked a question why it's wrong to take a show from Hulu and deliver it somewhere else. There's no proper answer to this question and countries around the world are finding out just how difficult it is to answer."

While I agree with you in general, the 'reason' for this is licensing (which has antiquated historical reasons.)

Re: Re: Should it be a surprise?

I think R. Miles actually nailed it. He said the question is why is it wrong, and that there is no proper answer. Meaning, it's not wrong. Your answer indicates why it's illegal, but it isn't wrong (ie immoral).

I think that if someone comes up with a better case, the cablevision ruling will get overturned fairly easily. It isn't a question of the length of wire, but rather who controls the box used for storage.

When you record on your local PVR, you are the only one (plural household you) who can access the material. You have a copy (as if you had watched the show live) and that is yours to enjoy in fair use.

However, Cablevision's system was a shared DVR. Effectively, they only need to store one copy of the show (not one copy per user, one copy total) and share that copy with whoever wants it. Obviously, it isn't hard to go from a PVR to a video on demand system (let's say you select to record everything all the time forever).

So it isn't the wire, it's also the method used to record, who is actually doing the recording, etc.

The judges worked hard to make it legal, but they had to really come up with some twisted logic to get there. That sort of ruling is easily undone. The Supreme Court is probably waiting for a contradictory ruling in another circuit, so they have two sides to work from.

Re:

Except that there is one copy per user, not a shared one. The article even points out that the Singapore company switched to having one copy per user.
But that doesn't even really matter, how the file is stored is an implementation detail. There should be nothing stopping from compressing there storage system that may use the same bits on a disk for several users individual copies of the same content. What matters is that it functions as a DVR, allowing time shifting. If a user records a show, they can play it back at a later time.
The only thing preventing you from using an existing DVR to record "everything all the time forever" right now is limits in storage technology.

Re: Re:

The only thing preventing you from using an existing DVR to record "everything all the time forever" right now is limits in storage technology.

No, the only thing stopping me from doing that is having the ability to watch all of the digital channels at the same time all the time.

In the end, I think that if the copy is outside of your hands, and could potentially be used by others, then it isn't fair use in any way shape or form. It's just glorified file sharing at worst, and at best "video on demand" service that doesn't pay royalties for it's product.

mikee mikee mikee your grasping yet again

mikee;

You obviously don't understand the technology at all if you think that it truly that the only difference is the length of wire to the TV.

Cable companies would be recoding EVERY movie, episode, show only once no matter how many people actually chose to tivo it, then they would be broadcasting that recording when the end user selected the show to watch. No different than torrents really.

With a Tivo unit in the home there is a finite amount of storage, it requires the end user to take action to both record the show and to prevent it from being overwritten etc.

While it is legal for the home user to do whatever they want with the signals that are broadcast into their home, it is not legal for a provider to do whatever they want with the signals that they are contracted to re-broadcast.

Re: mikee mikee mikee your grasping yet again

With a Tivo unit in the home there is a finite amount of storage, it requires the end user to take action to both record the show and to prevent it from being overwritten etc.

Ah, so whether something is copyright infringement depends not on the length of the wire, but on the size of the hard drive! So right now, with say 80 hours of storage, it's OK for me to have a DVR. With technological advancement, if I had instead room for a million hours, I would be violating copyright? Or only if I had a single button that said "record everything", then that would be infringement, but if I have to specifically choose to record each show, it's OK?

Just trying to keep track of these copyright rules you apparently made up just now..

Another case of the effects of Free Trade Agreements with the USA. The Copyright Act in Singapore has been revised quite a bit since the implementation of the FTA with USA, so as to meet the requirements of the FTA.

Last year, the Act probably made 90% or more of all iPod users in Singapore criminals, since iTunes Store is not available in Singapore, and with few legal sources of digital music, these iPods would be filled with "illegal" copies according to the law.

Another case of the effects of Free Trade Agreements with the USA. The Copyright Act in Singapore has been revised quite a bit since the implementation of the FTA with USA, so as to meet the requirements of the FTA.

Last year, the Act probably made 90% or more of all iPod users in Singapore criminals, since iTunes Store is not available in Singapore, and with few legal sources of digital music, these iPods would be filled with "illegal" copies according to the law.